(concurring). The majority believes that defendant adequately preserved a constitutional challenge to the evidence obtained from the global positioning system (GPS) tracking device. Not only do I disagree with that holding, but defendant does as well — he asserts that his trial attorney inexcusably failed to seek suppression. Consequently, I would analyze the GPS issue in the context of an ineffective assistance of counsel framework. Before trial, the People provided the defense with documents revealing that a GPS device had been attached to defendant’s automobile and was used to track his location at specified times and locations. Once alerted to these facts, defendant urged his attorney to inquire if the court would “entertain” a pretrial motion to suppress the GPS evidence. When defense counsel posed the issue, the court responded that it believed it had already ruled on the request, but that it would consider the application if “something specific” was raised and the issue would be reviewed “at that time.” Defense counsel, however, did not pursue or file a motion. At the subsequent trial, the People presented the GPS evidence.
Before summations, defendant asked the court if it was aware of a GPS case that was pending at our Court, entitled People v Weaver (52 AD3d 138 [3d Dept 2008], lv granted 10 NY3d 966 [2008]). The judge indicated that he knew of the case but did not engage in further discussion. Approximately two weeks after the verdict in defendant’s case, but prior to his sentencing, we issued the decision in People v Weaver (12 NY3d 433 [2009]). Defense counsel then moved to set aside defendant’s conviction under CPL 330.30, claiming that the People should not have been allowed to use evidence derived from the GPS unit because it had not been authorized by a search warrant. Supreme Court denied the motion.
On these facts, the GPS issue clearly was not adequately preserved (see CPL 470.05 [2]). Except under unusual circumstances not present in this case, a motion to suppress evidence must be made before trial (see CPL 710.40) and is to be submitted in writing (see CPL 710.60 [1]). Because the suppression motion was not timely or properly presented to the trial court, it cannot be faulted for refusing to consider the issue. Defendant’s counsel did not comply with the court’s request for a *191pretrial motion and the issue was not raised again until after the GPS evidence had been offered into evidence (see CPL 710.40 [2], [4]). Neither defendant’s oral application made immediately prior to summations nor his postverdict CPL 330.30 motion could be used to belatedly raise this issue (see e.g. People v Hines, 97 NY2d 56, 61-62 [2001]; cf. majority op at 188).1
Recognizing the untimeliness of the suppression request, defendant now asks us to determine that his trial attorney was ineffective for failing to properly submit his suppression challenge to the GPS evidence. Although the record in this case supports the procedural course charted by defendant on this appeal, I do not believe that defendant has satisfied his burden of establishing that counsel’s performance was objectively unreasonable (see generally People v Brown, 17 NY3d 742, 744 [2011]; People v Baker, 14 NY3d 266, 270-271 [2010]). At the time the suppression motion should have been made, the trial court would have been bound by the Third Department’s ruling in Weaver, which held that the use of a GPS device by law enforcement was not subject to a warrant requirement (see 52 AD3d at 142-143). We did not overturn that determination until after the jury in this case rendered its verdict.2 Of course, the fact that the GPS issue had not yet been definitively resolved as a matter of New York or federal law may weigh in defendant’s favor — the lack of a suppression motion impeded his ability to raise the issue on appeal even though he would have been entitled to rely on any advantageous decisions that occurred while his direct appeal unfolded (compare People v Nesbitt, 20 NY3d 1080, 1082 [2013], with People v Feliciano, 17 NY3d 14, 28 [2011]).
*192Ultimately, however, defendant’s ineffectiveness argument falls because he has not demonstrated that trial counsel’s inaction prejudiced him or deprived him of meaningful representation in the context of the entire case (see generally People v Heidgen, 22 NY3d 259, 278-279 [2013]). As the majority correctly observes, the GPS evidence was quite limited in terms of factual disclosures and otherwise similar to proof that had been legally obtained. For example, aside from the GPS evidence, defendant’s guilt was overwhelmingly established by surveillance videos, extensive visual observations by investigators, numerous recorded telephone conversations, statements from store employees and the discovery in a codefendant’s residence of a machine that created counterfeit credit cards. Therefore, trial counsel’s failure to properly seek suppression of the GPS evidence did not deprive defendant of meaningful legal assistance.3 For these reasons, I would affirm the order of the Appellate Division.
Chief Judge Lippman and Judges Smith and Rivera concur; Judge Graffeo concurs in an opinion in which Judges Read and Abdus-Salaam concur.Order affirmed.
. Citing CPL 710.60 (5), the majority evidently believes that the presummation oral application timely presented the GPS issue. This position is inconsistent with the relevant provisions of article 710 of the Criminal Procedure Law. In general, a motion to suppress must be served or filed within 45 days after arraignment unless the court specifies a different time frame (see CPL 710.40 [1], citing CPL 255.20 [1]). A motion to suppress at a later point in a criminal proceeding — “during trial” (CPL 710.60 [5]), for example — is permitted “when, owing to unawareness of facts constituting the basis thereof or to other factors, the defendant did not have reasonable opportunity to make the motion previously” (CPL 710.40 [2]). This exception is inapplicable since the defense was clearly alerted to raise this issue in an appropriate suppression motion. Section 710.60 (5), therefore, has no bearing on this case and the fact that “[t]he Appellate Division found the objection sufficiently preserved” (majority op at 188) is not determinative (see People v Davidson, 98 NY2d 738, 739-740 [2002]).
. See also Matter of Cunningham v New York State Dept. of Labor (21 NY3d 515, 520 [2013]); United States v Jones (565 US —, 132 S Ct 945 [2012]).
. I agree with the majority that the verdict sheet did not violate CPL 310.20 (2) and that defendant’s other contentions are meritless.